Totham v King's College Hospital NHS Foundation Trust

This is a claim for damages for serious brain injuries which the Claimant (“Eva”) suffered during her delivery at King’s College Hospital on 4 October 2007. The Defendant (“the Trust”) has accepted liability for those injuries. Eva and the Trust have also agreed some heads of damage. This is my decision, after a three-day hearing, on the remaining disputes about damages. I was also asked to approve the parties’ agreement to settle 20 various heads of damages. I have read and considered the advice by the Claimant’s counsel about this. I record my approval of that settlement in this judgment, having announced it in open court in the course of the hearing.

Given the Trust’s concession on liability, I do not need to say anything about Eva’s delivery. The relevant facts for my purposes are the facts about Eva’s current condition and prognosis, in so far as these have a bearing on the appropriate compensation for her injuries.

Eva suffered a grade 2 hypoxic ischaemic injury at birth. Initially the prognosis was unclear. Although a full developmental assessment in February 2008 suggested that everything was normal, it became clear that Eva was having problems with her posture and muscle tone. By June 2008, she was showing signs of cerebral palsy. Eva is now 7 years old. She is generally healthy, and weighs about 16kg. She lacks muscle strength and dexterity in her hands and arms. She finds it hard to control the position and movement of her head. It is hard for her to sit, or to get around, without help. She cannot walk without help. She has a manual wheelchair which she cannot propel, a walker, in which she can walk, and a TomKat tricycle which she can pedal.

She no longer suffers from seizures, perhaps because these are controlled by sodium valproate. But she has a startle response to loud noises. She is on medication to control this, to control her dribbling and to help her with movement. At the date of her parents’ first witness statement, she was continent during the day, but not at night; her parents were working on this, and said that when she was continent at night, she would need someone to help her on and off the toilet at night. She is now continent at night. She generally sleeps well, although she wakes up at least once, needing a drink of water. As she gets older, it is likely that she will need someone to be with her all the time.

She goes to a mainstream primary school, with one-to-one support. She started there in September 2012. Before that she went to nursery part-time. She needs help to get any benefit from the curriculum. It is already harder for her to do this than it was in the reception class, partly because, as a result of her physical disabilities, it takes her so long to do each task. Her parents are concerned that she needs, and will need, much more help than is being provided at school at the moment to enable her to achieve her full potential.

I watched the “Day in the life of” DVD. It is very moving. Eva is a beautiful, engaging child. Her eyes shine. She is determined, and concentrates hard on any given activity. She clearly enjoys the company of her family, and there seems to be a touching bond between her and her younger sister. She is generous both in giving, and receiving, affection. She loves hugs and cuddles. She has an evidently strong need for human contact. It is clear that she very much wants to be able to speak to other people. The physical difficulties she faces in articulating what she wants to say are formidable. Nonetheless, as was clear, for example, from the session with the speech and language therapist, and from the scenes with her family, and at school, she is determined to try and try. She wanted to explain her feelings about thunder, and it seemed clear to me that she did not enjoy it because it is loud. In their witness statement, her parents say that she has a big vocabulary, and they can understand much of what she says, but that there is a significant gap between what she can understand and what she can say, which is as much a source of frustration for them as for her. Regular speech and language therapy have helped a good deal.

She does many physical activities with apparent enthusiasm and enjoyment, such as riding her adapted trike. Mr Totham described in his evidence how greatly she enjoys hippotherapy. But there is no denying that everything she does is a hard struggle, for example, when she was using the posting box. She clearly wants to succeed at everything she tries. But it is clear that she cannot do, and will not be able to do, without a good deal of help, any of the things that able-bodied people carelessly take for granted, such as getting out of bed, moving around, feeding herself, or dressing herself. That is confirmed by her parents’ evidence.

I had a strong sense of an energetic, inquisitive mind trapped in a body that will not do what Eva would wish it could do. She is clearly a very determined girl. Although there were but a few signs of this in the DVD, her parents say that she already gets very frustrated by her limitations, which is upsetting for the whole family. She suffers from “dramatic mood swings which she seems unable to control”. When she is in this frame of mind she refuses to co-operate. This affects her learning and disrupts family life. Mrs Totham described this in her oral evidence. She explained that part of Eva’s brain injury involves the basal ganglia, which regulate emotion. This is supported by an MRI scan referred to at paragraph 8.1 of Mr Reid’s report. Eva suffers from what Mrs Totham described as a “double whammy” of frustration and lack of control of her mood.

In some ways, the DVD paints a somewhat artificial picture of daily life, in the sense that Eva clearly knew that she was, and very much enjoyed being, the centre of attention. I could see that she was aware of the camera. Mrs Totham explained in her oral evidence that Eva’s mood fluctuations mean that despite her evidently engaging personality, the family are very much “on a knife edge” as things can suddenly fall apart. If she is not getting full attention, or if something is not quite right, for example a strap is in the wrong place, she can “react in a very extreme way”. This is compounded by the fact that she cannot always express her needs clearly. If a parent leaves the room momentarily, to put the kettle on, or go to the toilet, she gets very agitated. Sometimes her parents know what the issue is and sometimes they do not.

I am satisfied, on the balance of probabilities, that Eva is beginning to be aware of the limitations which her injuries now impose, and will always impose, on the scope of her life, and that that realisation will be an increasing source of frustration and perhaps unhappiness. In other words, she has a dawning insight into her condition, and that insight may well increase as she matures.

It is clear that her family love her. They are caring for her with humour, affection, and devotion. But the physical and emotional strain which this must cause should not be under-estimated. As she grows older, and becomes bigger and heavier, those strains will inevitably increase, as will the logistical difficulties of providing that care. I have read the joint witness statements of Eva’s parents. They are both well qualified and have professional jobs. I was impressed by the matter-of-fact and good-humoured way in which her parents gave evidence at the hearing. They did not ask for sympathy or exaggerate the practical difficulties of looking after Eva. I was also very impressed by the sensible way in which they are getting on with things and doing what they can to make life for their family as ordinary and as fulfilling as possible.

The parties agree what my general approach should be (see paragraph 26 of the Trust’s skeleton argument). There are two fundamental points. The first is that the purpose of an award of damages in these circumstances is, so far as is possible, to put Eva in the position she would have been in had the Trust not negligently injured her. Eva is “entitled to be compensated as nearly as possible in full for all pecuniary losses.....Subject to the obvious qualification that perfection in the assessment of future compensation is unattainable, the 100% principle is well established and based on high authority”: see per Lord Steyn in Wells v Wells [1999] AC 345 at 382-3. The application of this principle to past losses is relatively straightforward. Past losses are ascertainable with some accuracy. Its application in practice to future pecuniary losses is necessarily more difficult.

The second fundamental point is that deciding whether a head of loss is recoverable, and, if so, its amount, involves an assessment of the reasonableness both of the claimed head of loss and of its amount: Sowden v Lodge [2004] EWCA Civ 1370. This principle was explained in two ways by Stephenson LJ in Rialis v Mitchell (1984) The Times 17 July, at pages 24-26 of the transcript. First, the duty to mitigate loss is a duty to take reasonable steps; and second, it is a foreseeable consequence of a defendant’s negligence that a claimant will take reasonable steps to mitigate the loss caused by that negligence. The touchstone of reasonableness means that there will often be a range of potentially reasonable options for a claimant to choose from when mitigating her loss. Provided her choice is within that range, the defendant cannot reduce his liability by arguing that Eva should have chosen a cheaper option from that range. “The defendant is answerable for what is reasonable human conduct and if their [sc Eva’s parents’] choice is reasonable he is no less answerable for it if he is able to point to cheaper treatment which is also reasonable”.

So a claimant has, and those acting on her behalf have, a duty to take reasonable steps to mitigate her loss. Any loss which is caused by a failure to take such steps is not recoverable. Provided a claimant acts reasonably to mitigate her loss, she can recover for any loss which she incurs in doing so, even if the resulting damage is greater than it would have been had she taken no such steps. She can recover for reasonable steps taken to avoid loss. Where a claimant successfully mitigates her loss, a defendant is entitled to the benefit of such steps (McGregor on Damages, 19^th edition, paragraphs 9-002-9-006).

A third point, which I have already mentioned, is that there is an obvious distinction between quantifying losses and expenses which Eva has already incurred and future losses. Subject to any points about mitigation, if I am satisfied on the balance of probabilities that a loss has been incurred, and if it was reasonably incurred, then subject to quantification, it is recoverable. The assessment of future losses, on the other hand, involves an assessment of the chances of future events, and that assessment of those chances, whether they are more or less than even, must be reflected in the amount of damages.

There are ten substantive issues which are still more, or less, in dispute. There are two further issues about interest. Their resolution depends on the resolution of the substantive issues. The ten issues are:

General damages for pain and suffering and loss of amenity

I have found this is a difficult issue. I am not the first to say that its intrinsic difficulty is the difficulty of assigning any sum of money to represent the combination of losses which I must value under this head. I have been helped by the Judicial College (“JC”) guidelines, and the cases to which I have been referred. No two cases are alike. Moreover, the constellation of factors which is relevant to this head means that any assessment is inevitably impressionistic. Mr Hutton QC submitted that the right award was £265,000 (including a Simmons v Castle uplift), and Mr Latimer-Sayer, £290,000-£300,000.

I accept Mr Hutton QC’s overall submission that Eva’s injuries are not at the very top end of the JC bracket, and are not at the same level as those of Luke Warren and Robert Annable in Heil v Rankin [2001] QB 272. I reject Mr Latimer-Sayer’s submission that in Heil v Rankin the Court of Appeal was setting guidelines other than by indicating the general level of uplift that was appropriate for broad classes of case. I have carefully considered the passages he referred to in his email of 15 December 2014. What they show, in my judgment, is that the hearing was prompted by the Law Commission’s view that the general level of damages for pain suffering and loss of amenity was too low, and that by choosing a range of different cases, the Court of Appeal aimed to show how its view, that the general level was too low, should be put into practice. I do not think that the Court of Appeal considered that it was setting binding precedents for the actual level of damages in cases that were similar to the cases it decided in those appeals. The passage from Lord Diplock’s speech in Wright v British Railways Board [1982] 2 AC 773 which is cited at paragraph 43 of the judgment of the Court makes this clear.

In my judgment, Eva’s level of functioning is higher than that described in this section of the JC Guidelines. She is continent at night and in the day. She sleeps well. According to Albert Reid’s evidence, her functioning on verbal tasks is in the range between borderline learning difficulties and low average, though her functioning on performance tasks which do not involve fine motor skills is in the range between severe and moderate learning difficulties. This means she has, and will have, insight into her condition. She is at a mainstream school. She can communicate with help, although her dysarthria means that it is hard for those who do not know her well to understand what she says.

She can, and apparently does, enjoy aspects of her life, though she does have unpredictable and extreme mood swings. She had seizures as a baby but her epilepsy is controlled, though she does have a pronounced startle response. Her physical disability is great. She has very little function in her upper limbs. She cannot sit unsupported. She needs help with transfers. But she can roll, she can ride her trike, and walk with help, albeit that she is propelled by her spasms; she has almost continual involuntary choreoathetoid movements. She is not fed with a tube, though she cannot feed herself. Her life expectancy is 47 years.

The JC Guidelines say that the level of damages is influenced by 3 factors: level of insight, life expectancy and physical limitations. The higher each of these is, the higher the damages will be. I am not persuaded by Mr Latimer-Sayer’s submission that the first of these factors takes precedence in any assessment. It seems to me, rather, that the influence of the factors will vary from case to case and that they necessarily interact with one another to produce an overall result.

I was referred to a number of decided cases and approved settlements. As I have said, every case is different, and in each the balance of competing factors is slightly different. Doing the best I can, I consider that the appropriate award, taking into account the Simmons v Castle uplift, and increase in RPI is £275,000.

Past gratuitous care

The hours and rates are agreed. The cases make clear that parents are to be recompensed for care they have provided. On the face of it, their loss equates to any remunerative employment which they have given up in order to care for an injured relation. But the cases also show that compensation is capped at the commercial cost of that care. That is known as the ceiling principle.

It is common for experts to arrive at the commercial cost of care by using the National Joint Council (“NJC”) rates. The basic rate is used when care is provided during working hours, and the higher, aggregate, rate, when care is provided twenty four hours a day and at weekends, or is rather more than basic unskilled care. The parties agree that the aggregate rate is appropriate, because care was provided at all hours.

The only issue is whether there should be a discount from the agreed total of £80,000 to reflect the fact that this was gratuitous care provided by Eva’s parents. The cases also recognise, it seems in practice, rather than as a matter of law, that other than in exceptional circumstances, a discount of between 25 and 30% should be made from the commercial cost of care to reflect the fact that care is being provided at home, and to reflect the likely incidence of tax and NIC.

Mr Latimer-Sayer argued that Mrs Totham gave up a highly-paid job, and then went back to working part-time in order to care for Eva, and to organise and co-ordinate the complex arrangements for her care. These factors, he submitted, meant that the rate which should be attributed to this head of claim should be the aggregate NJC rate. They also meant that there should be no discount, in part because the very high earnings which Mrs Totham had foregone made this an exceptional case, and in part because even the aggregate NJC rate did not reflect the actual cost of care in London, which was higher than the aggregate NJC rate.

Mr Hutton QC pointed out that a similar argument had been rejected by Swift J at paragraph 143 of Whiten v St Georges Healthcare NHS Trust [2011] EWHC 2066 (QB); [2012] Med LR 1. That, too, was a London case. I accept Mr Hutton QC’s submission. In my judgment the factors relied on by Mr Latimer-Sayer do not mean that this case is so unusual as to mean that there should be no discount. It seems to me that his submission is an attempt to circumvent his side’s agreement with the Trust that the appropriate rate is the aggregate NJC rate. If he considered that the aggregate NJC rate was not the commercial rate in London, it should not have been agreed. His reliance on the highly paid employment which Mrs Totham gave up is inconsistent with the ceiling principle.

My conclusion is that there should be a discount. Mr Hutton QC’s initial pitch was for a 30% discount, but it seems to me that 25% is more in keeping with the tenor of the recent authorities, so that is, in my judgment, the appropriate discount here.

Past gratuitous case management

The hours are now agreed. There are two issues: whether

Mr Latimer-Sayer argued that this case management was not carried out only during the working week, but, in part, at least, fitted round Mrs Totham’s working hours, and so involved, for example, her sending emails outside working hours and at weekends. These factors, he submitted, meant that the rate which should be attributed to this head of claim should be the aggregate NJC rate. He also argued that the total hours claimed were so low that if they were added up, they would not be enough to incur a liability to tax, as the total was less than the annual personal allowance. That, and the very high earnings which Mrs Totham had foregone, made this an exceptional case and meant that there should be no discount.

I am narrowly persuaded by Mr Latimer-Sayer’s argument that the aggregate, rather than the basic, NJC rate is appropriate. I was initially attracted by part of his argument on the discount, but on reflection, do not consider that it is right. The small number of hours reflects the fact that this service was provided, at least for some of the time, in tandem with paid, taxable, employment. It seems to me that the recompense for that would be liable to tax and NIC also. I reject the argument based on Mrs Totham’s highly paid employment for the same reasons as I rejected it in connection with past gratuitous care. So the appropriate rate is the aggregate rate, and there should be a discount of 25%.

Past professional case management

The starting point is that these sums have actually been spent. The case for the Trust is that the Totham family did not get value from the money they paid to ILS. Mr Hutton QC submitted that there is an overall principle of proportionality which means that the Trust should not have to pay for a service the charges for which were “grossly unreasonable”. He pointed, by comparison, to Mrs Sargent’s two estimates which were considerably less than that amounts spent, and to Miss Cotterell’s estimate. The amounts are more than is being paid to the current case manager. He reminded me of Mrs Totham’s rhetorical question, “Why should we have to pay for being taken advantage of?” He fairly made clear that he did not criticise Mr and Mrs Totham, and that he accepted that they had been in a very difficult position.

His point was the Trust, which is publicly funded, should not have to pay for costs which were “grossly excessive and unreasonable”. He suggested that the conduct of the professional deputy (a partner in a firm of solicitors, appointed by the Court of Protection) should also be considered. He said that it was surprising that the deputy had not questioned the charges, but had endorsed them as normal. He pointed me to cases in which, albeit without much explanation, judges had discounted costs which they thought were excessive. He submitted that it would not be right for the court to endorse the payment of wholly unreasonable sums by the defendant.

He accepted that the relationship between this principle of proportionality and the rules about mitigation of loss was “hazy”. He said that if there was evidence to explain an overspend, the principles of mitigation might help a claimant and accepted that there was a burden on a defendant, if sums had been actually spent, to show that they were unreasonable. He submitted that if a claimant had not got value for money, then there should be no recovery.

Mrs Totham explained in her evidence the care which she took over the appointment of a professional case manager. She and her legal team devised a recruitment process. They interviewed 5 case managers from different companies, and were not comfortable with any of them. I bear in mind that Mrs Totham is a highly experienced human relations professional and it seems to me probable in the light of that that the interviews were systematic and probing, and that that they revealed real shortcomings with those companies. The Tothams relied on their legal team for advice. They then found Anita Reals and ILS; and they appointed ILS.

All this was completely new to the Tothams. They relied on their legal team and then on ILS and Ms Reals. After 12 months, Mrs Totham was very frustrated. In short, ILS were completely reactive, and nothing happened unless Mrs Totham initiated it and then chased it up. She told ILS, who suggested they switch to a different case manager. They did so. Kerry Green said that she understood, and that it would be different. They worked for the next 6 months, but it was still very frustrating. Mrs Totham raised concerns with Eva’s deputy because she felt she was not getting value for money. He said that the amounts were normal and that she should not be concerned. She relied on his advice absolutely.

She felt she had done all she could to deal with her concerns. She was very open and vocal with ILS but that did no good, and she had no benchmark. She thought her expectations were too high and that the case management industry just could not live up to those. Once the new case manager was recruited, she began to understand what a proper case manager could do. She was much more pro-active, experienced and imaginative. ILS had sent an email and left a voicemail saying that they could not work with her any more, with immediate effect. They were not prepared to continue.

She does not know what else she could have done. ILS are a big, reputable company. They do not have a bad reputation. The Tothams were unlucky with the case managers they had. Those managers did not realise how complex the case was. The Tothams are not unreasonable, but they wanted the best and only got the bare minimum. They have not paid some outstanding invoices which they consider are unreasonable.

I accept Mrs Totham’s evidence on this aspect of the case. In my judgment the question is whether she acted reasonably in appointing ILS in the first place, and in continuing to employ, and pay, them until they walked off the job. I have no hesitation in deciding that she did so, on both counts. I take into account all the sensible steps she took in appointing ILS and in trying to manage them, and in checking with her professional and experienced deputy whether their charges were out of line. I also take into account that during this period she and her husband had many other challenges to cope with, many of those as a direct or indirect result of the negligence which the Trust has now admitted.

I allow this part of the claim in full.

Past holidays and leisure

There is one outstanding issue under this head. This is the cost of the economy flight to South Africa in 2011. It is agreed that the correct measure of damage, as the Tothams would have flown to South Africa economy class in any event, is the difference between the cost of those flights, and the business class fares. The Defendant points out that the cost for the economy flights that year, £2,265, is about £1,000 less than it is in the later years. Mr Totham gave evidence about this. He did not keep independent documentary proof of the cost in that year, but said that he had put the figure into a spreadsheet. He said that some years the prices were discounted. He was asked if he had made a mistake, and the true figure was £1,000 more. He said, “I can’t see that I would have”. It is, of course, possible that Mr Totham put an incorrect figure into his spreadsheet. But he is an IT professional, and I consider that it is unlikely that he in fact did so. I am therefore satisfied on the balance of probabilities that the figure he has provided is the right one.

Future loss of earnings and benefits and lost years

The Claimant also claims a lump sum in respect of lost earnings between the ages of 16 and 21, and periodical payments in respect of lost earnings between the ages of 21 and 47. She also makes a claim for the “lost years”. I deal with that first.

Eva claims damages for her loss of earnings and pension between the ages of 47 and 93.6 years. She accepts that such a claim is prevented by the decision of the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71. In Croke the plaintiff was injured at the age of 21 months. His life expectancy was reduced to 40 years. The Court of Appeal held that he could make a claim for loss of earnings during the period for which he was then expected to live, but not in respect of the “lost years”.

Griffiths LJ (as he then was) explained the social policy on which this approach was based. First, compensation for the “lost years” was intended to form a fund which would be available to support a plaintiff’s actual or likely dependants. In the case of a catastrophically injured child, “...the court should refuse to speculate as to whether in future there might have been dependants for the purpose of providing a fund of money for persons who will in fact never exist”. Second, if the gravely injured child was going to live for many years into adult life, “very different considerations apply. There are compelling social reasons why a sum of money should be awarded for his future loss of earnings. The money will be required to care for him.”

In Iqbal v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190 the Court of Appeal held that the first instance judge in that case had been bound, and that it was bound, by Croke, but that Croke (and, in particular the reasoning I have just referred to) was inconsistent with two decisions of the House of Lords, Pickett v BREL [1980] AC 136 and Gammell v Wilson [1982] AC 227. The Court of Appeal granted permission to appeal to the House of Lords but the appeal was then settled.

I must follow Croke. In the light of the views of the Court of Appeal in Iqbal, I make two points only. First, I consider that the decision in Croke is inconsistent with the principle of full compensation which I have already mentioned. Second, I respectfully agree with Rimer LJ in Iqbal that the policy justifications referred to in Croke (see above) are inconsistent with Pickett and Gammell.

In short, the Trust’s negligence means that Eva will live for a shorter time than she would have lived had the Trust not negligently injured her. It also means that she will not earn the salary and pension, which, had she not been injured she would, on the balance of probabilities, have earned. The Trust’s negligence has deprived her of those earnings (net of living expenses) during the “lost years”. She should in principle be compensated for that loss. There is no rational basis for allowing such claims by adults, but refusing to allow them when made by children. Consistently with my approach below, I assess those losses as £32,694.51 a year until the age 70, when, on current trends, I consider it likely that Eva would have retired, and at £12,000 a year after that. I do not consider it likely that Eva would have benefitted from a final salary pension scheme, as those are becoming increasingly rare.

Other things being equal, this is a point which should be resolved by the Supreme Court. It would save the parties time and costs if Eva were able to appeal directly to the Supreme Court, rather than having to appeal first to the Court of Appeal, which would again be bound to dismiss the appeal, as it did in Iqbal. No such appeal is possible in this case as the Trust will not consent to it. If those advising Eva wish to pursue it, they will have to appeal to the Court of Appeal first.

The Claimant also claims a lump sum for loss of earnings between the ages of 16 and 21 based on assumed earnings of £3,000 a year. It is argued that her parents live in an area of London in which it is relatively easy for young people to get holiday and weekend jobs, and where such jobs are likely to be paid above the appropriate minimum wage, and that her parents would very much have encouraged her to do that. Mrs Totham described in her evidence the variety of holiday and weekend jobs which she had done as a teenager and while at university. The Trust contends that £2,000 would be a reasonable amount. I accept that Eva’s parents would have encouraged her to get holiday and weekend jobs, that she would be likely to have got such jobs, paid above the minimum wage, and that her living expenses, and expenses in getting to work would have been likely to be low, if not non-existent during this period, as she would have been living at home. Doing the best I can, I consider that the Claimant should recover £3,000 a year under this head.

The Claimant claims a periodical payment in respect of loss of earnings after the age of 21. The parties agree that Eva would have gone to university and have become professionally qualified. They therefore agree that the calculation should be based on the average salary for professional women of £36,735.40 net. If a 0.89 discount factor for contingencies is applied to this amount, it becomes £32,694.51. In his skeleton argument, Mr Hutton QC contended that a deduction for expenses related to work should be made from this amount, and a discount to reflect the likelihood that Eva’s earning capacity would have been affected by having children.

On the former point, I was referred to a passage in Eagle v Chambers [2004] EWCA Civ 1033 [2004] 1 WLR 3081 (at paragraphs 66-68) in which Waller LJ said that there was no rule of law about this. A broad assessment should be made; inordinate time should not be spent on it. In my judgment the likelihood is that, perhaps in her mid-twenties, Eva would have left home, and, given the cost of accommodation in central London, would have moved further from the centre than East Dulwich, and would be incurring significant travel costs. In my judgment the earnings figure should be discounted by to reflect this. The current cost of an annual travel card for zones 1-9 is about £2,000. If current trends continue, that is likely to have increased by the time Eva is in her mid-twenties. Doing the best I can, I consider that the appropriate discount is £2,000. However, I accept Mr Latimer-Sayer’s submission that the likelihood is that she would have received some benefits in kind on top of her salary, and that it would be reasonable to offset the one against the other. I think it unlikely that these would have included membership of a final salary pension scheme.

On the latter point, Mr Latimer-Sayer’s riposte (skeleton argument paragraph 69) was that paragraph 40 of the Ogden Tables (Table B of which is the source of the discount factor) makes it clear that the factors allow for just this possibility. Mr Hutton QC accepted this in his oral argument.

Future care (lump sum) in respect of childcare

The first question is whether, on the current evidence, there is a more than fanciful or speculative chance (Mr Latimer-Sayer submitted, a 14% chance or more) that Eva will have children. It is not for me to decide whether she should do so. That will be a decision at the relevant time, either for her, if she has capacity, or, if she does not, for those who make decisions for her at that stage.

The two care experts essentially agreed about the position at that stage. Mrs Sargent, Eva’s expert, said that she had experience of young women with Eva’s level of physical disability having children, but only in cases where they had no cognitive disability, so that they could parent, love the children as a mother, even though they needed physical help to do this. Mrs Cotterell echoed this. Mrs Sargent has been the case manager in two such cases, and has been involved in other such cases. Eva would have to be able to parent, to have the intellectual level to make decisions as a parent, which can’t be left to carers. That is too hard on the children, who need a mother. A person functioning at the level of a child can’t be the parent of a child. Many people who function at the low end of average are successful parents, and those with mild learning difficulties can also be parents. A further point, which Mrs Cotterell touched on in her evidence, is that although the opportunities for people with disabilities to socialise and form relationships have improved a good deal, Eva’s physical difficulties and the unknowns about her emotional development may make it hard for her to have an intimate relationship.

This issue arose at the last minute, as a result of a supplementary written question which Mr Reid was asked shortly before the hearing. There was no evidence from any medical expert about it.

That means that the question at this stage is whether there is a more than fanciful chance that Eva will have the capacity to be a parent when she is old enough to be a parent. That turns on whether there is such a chance that she will have the cognitive ability to be a parent, for if she does not, the care experts seem to agree, it would not be either in her best interests or those of any child, for her to have a child, or children.

The relevant expert evidence on that is a report from Dr Essex, Eva’s expert neuro-developmental paediatrician, and a report and supplementary letters from Albert Reid, the joint educational psychologist. Dr Essex wrote his report in February 2013. He reviewed her paediatric records and examined her in 2009, when she was 1 year and 9 months old, and again on 8 February 2013, when she was 5 years and 4 months old. He did not give her any psychometric tests. He was not cross examined at the hearing. Mr Reid saw Eva at school, on 4 April 2014. He gave her some tests, but did not do a full Wechsler test. Mr Reid was asked questions by both counsel.

Dr Essex was instructed to comment on Eva’s condition and prognosis. In summary, he described Eva as having a “severe physical handicap and probably moderate [possibly severe] learning difficulties”. He said, “I believe that on the balance of probabilities Eva has a significant degree of learning difficulties. This is because her head growth has slowed. Head growth is a surrogate indicator of growth of the underlying brain.” He made some observations about her head circumference. That had been between the 25^th and 50^th centile when she was 8 weeks old, but that had fallen over time, and was then on the 0.4^th centile, suggesting poor growth of the underlying brain.

He went on to say that she would never have a partner because of her degree of disability. He did not believe that she would have capacity to make decisions about her life affairs, including litigation, treatment and care. She would be able to express preferences if given a choice she was familiar with. She would need someone to interpret her communication. She would always be a person who lacked capacity under the Mental Capacity Act 2005 (“the MCA”).

Mr Reid was asked to comment, among other things, on the extent of Eva’s learning disabilities (and to describe them), on her future academic capabilities, on her capacity and whether she would be able to manage her affairs as an adult. She was 6½ years old at the date of his assessment. In his summary he said he noted the report of Dr Essex and the evidence of microcephaly. He said that Eva’s functioning on verbal tasks was within the range of borderline mild learning difficulties to low average. Her functioning on those performance tasks which did not involve fine motor skills was within the severe to moderate learning difficulties range. Her functioning on performance tasks is “very significantly below expectations for her age”, even when her physical difficulties are taken into account (report paragraph 9.1). In his evidence he said that paragraph 9.1 could be criticised for not being explicit but that it was a refutation of the views of Dr Essex. I do not see any refutation of those views in paragraph 9.1, or elsewhere in the report.

He referred to a gap between Eva’s vocabulary and her ability to process words. He said that it was too early to comment on Eva’s future academic achievements. He went on to say that she would be likely to stay in a mainstream school with support. He also said it was difficult to comment on what education she could “access” after 16. He anticipated that she was likely to show “an increasing gap in terms of her attainments when compared with her peers”. She would be unlikely to achieve average results at GCSE, and might get modest results. He again made the caveat that it was difficult to comment on Eva’s “likely intellectual trajectory”. He said that in his experience, “even children who show relatively good functioning at the age of 6 tend to plateau in adolescence and she may well reach a “glass ceiling” even earlier in terms of abstract conceptualisation. It is likely that cognitive assessment will confirm lower levels of functioning as she gets older - I note Dr Essex’s comments in relation to Eva’s microcephaly and would agree that this is often associated with cognitive impairment”.

When asked about this in evidence he said that he was not saying that it was probable that Eva would reach a plateau but that it was a possibility. He disagreed with the suggestion that the tenor of this passage was that it was likely that Eva’s cognitive function would plateau and that, in comparison with her peers’, her cognition would get worse. I was not persuaded by this answer. He also said that he discounted microcephaly in Eva’s case because of her test scores, not that he discounted it in general. It was suggested that he had not said this in his report. His answer was not a convincing one. If she were to reach a plateau, he said, that would put her in the mild learning difficulties range, and that would not preclude parenting skills.

Cognitive skills would decline (I think comparatively) as Eva got older, but he thought that it would not have an impact on her parenting capacity. 16% of the population have her level of cognitive skills and can be parents. He said that she would never have severe learning difficulties. He had expressed caution in his report because he had wanted a further assessment. With her level of cognitive ability, Eva would want to have children, a normal relationship and family life.

At paragraph 6 he again stressed caution “about being definitive in terms of future cognitive functioning. I am of the view that this is an issue that should be addressed in adolescence when one has a better idea of Eva’s likely cognitive ability and also whether she would have shown evidence of executive dysfunction, which will have a significant impact on capacity.” I asked Mr Reid what he meant by “executive dysfunction”. He told me that it is a global term: it covers memory, attention span, distractability, the ability to sift relevant from irrelevant information, and to order actions. It is easier to assess both cognitive ability, and whether there is executive dysfunction, in a teenager than in a younger child. He gave the practical example of a person who is in the middle of cooking when the ’phone rings, and in the course of answering the ’phone, forgets that she was cooking.

As I have already indicated, as I read Mr Reid’s report, he was not dissenting from the views which Dr Essex expressed about Eva’s likely capacity and the significance of her microcephaly. Although Mr Reid was expressly instructed to consider capacity, he only did so obliquely, at the end of his report, and in terms which show that he did not feel able to express a clear view, because Eva was too young. He refers twice to the report of Dr Essex, and does not either in those references, or elsewhere, say that he disagrees with the opinion of Dr Essex either about capacity, or about the level of Eva’s learning difficulties.

In a letter dated 17 November 2014, he said that he thought “it likely that Eva is likely to form a relationship, and, subject to medical advice, I think that she would want to have children and likely that she would be able to. Patently she will not be able to look after children physically...and I anticipate that further care would be required...”.

In his oral evidence he said that his report showed that Eva had good innate cognitive ability. He thought that she had a baseline level of functioning. Her verbal ability is in the average range, and that is used to predict performance in the long run. He referred to her frustration with communication and said that if technology improved, this would help. He said that on balance of probabilities, in her twenties, she would have capacity (in MCA terms) to be a parent. I think by this he meant that she would have the capacity to decide to become a parent. When referred to the view of Dr Essex, based on Eva’s microcephaly, he said that he had known a highly intelligent microcephalic person. Cognitively, he said, she would be able to make decisions.

He said that he had not commented on capacity in his report because he thought that it was too early to do that. He said that Dr Essex had been wrong to say that Eva would lack capacity and that he would modify that view if he had a psychological report. To the extent it was calculable (and this was based on verbal aspects only) her IQ was 89-90. He accepted that he had not said in his report that he disagreed with Dr Essex. He repeated that there was a need for caution and that it was better to wait. He had reserved his position in his report but “when pressed” had said what he said in the November letter. All that had changed between his report and the letter was that he had been pressed to give a view. It was suggested to him that he had been asked a question, not pressed: “I was asked to be more definitive because the case was nearing completion, and I said on the balance of probabilities she would do”.

He said that it was implicit in his report that Eva would have capacity because his view was that she would be in a mainstream school. He reserved his position in the report because ideally he would have liked to do a further assessment to see what progress she had made. He seemed to accept that Eva would have lower levels of functioning as she got older.

I have considered the two reports and Mr Reid’s oral evidence. My conclusion is that, in his report, Mr Reid was rightly circumspect about expressing a view about Eva’s likely future capacity. He took account of, expressly referred to, and not only did not dissent from, but appeared to endorse, some of the report of Dr Essex. For some reason which he did not explain, when asked, in October, a specific question about Eva’s likely future ability to be a parent, he abandoned that cautious approach. I did not understand the explanation he gave for abandoning it. Nothing in the underlying facts changed between the date of his report and the November letter. Nor am I satisfied, on the balance of probabilities, that he has good grounds for changing his mind.

I conclude on the evidence as it now is, that I am not satisfied that there is a more than fanciful chance that Eva will have children. I take into account the reservations expressed by both care experts about the impact of cognitive deficits on a person’s ability to be a parent. It seems to me, on the current evidence, that it is not probable that a case manager and deputy will decide that it is in the best interests of Eva or of a prospective child, for her to have children. I must stress that this decision is based on the evidence I have read and heard. It does not foreclose that possibility in the future, should there be evidence, on the basis of Eva’s cognitive abilities at a later date, that that would be in the best interests of both. If I am wrong about this, I would have valued this aspect of the claim in accordance with the Trust’s expert’s calculations, and have awarded a lump sum in respect of it, discounted by 60%.

Future treatment and therapies

There are two disputed items under this head: the cost of future hippotherapy (£1,000 pa) and the additional cost of sporting activities (£600 pa). The Trust agrees the hippotherapy claim in principle, but argues that it is “fraught with uncertainties” and should therefore be discounted by 50%. The Trust does not agree that Eva should recover any damages for extra costs of sporting activities; it is argued that there would have been significant costs in any event, as Eva’s parents are very active, and would encourage their children to take part in a wider range of sports.

Mr Totham’s evidence showed clearly that Eva very much enjoys hippotherapy at the moment, and that she gains a great deal from it. While I accept that children do often lose interest in physical activities (sometimes temporarily and sometimes permanently) when they become teenagers, I consider it likely, taking into account Eva’s evident delight in riding, so lucidly conveyed in Mr Totham’s evidence, that, even if she wavers a bit in her teens, it is more probable than not that she will enjoy it, and want to continue it for the foreseeable future. As Mr Latimer-Sayer pointed out in his oral submissions, Eva will not have a paid job as an adult, and that, it seems to me, is a further reason why it is likely that she will continue with it. I therefore allow the full claim for hippotherapy.

The second item is based on the recommendation of the jointly instructed expert, Eileen Kinley. I have considered the relevant parts of her report. It seems to me that her recommendation includes hippotherapy, at least to some extent (see section 6 of the report). The costs in Appendix 2 are not broken down in any way. I accept Mr Hutton QC’s submission that an award of £600 under this head, when I have already made an award for hippotherapy, would involve double recovery. Eileen Kinley makes the apparently valid point that costs for swimming in hydrotherapy pools are greater than the costs of swimming in a conventional pool. She also appears to be factoring in the likelihood that had Eva not been injured, her parents would have incurred costs in relation to sports in any event. Doing the best I can, I consider that the right award under this head is £300 pa.

Future orthotics

The dispute under this head is the result of a degree of uncertainty about whether Eva will use orthotics in the future, and, if so, what those will be. The joint orthopaedic expert recommends orthotics (ankle foot orthoses - “AFOs” - , in this case). It was clear from Mr Totham’s evidence that he is very keen to do all he reasonably can to encourage Eva to get used to, to tolerate, and to use, these. She is not using them at the moment. In an email dated 24 November 2014, Eileen Kinley noted that Eva had used AFOs in the past, but did not tolerate them well, and it was not certain whether they were helpful. Eva’s physiotherapist considers that they should be tried again. Eileen Kinley’s experience is that children with Eva’s type of cerebral palsy do not tolerate these well. Costs vary; she gives one estimate; £459.44 per pair, plus assessment. They would be worn for some hours every day until Eva stops growing, at say, 16. If they are tolerated, they should be replaced every 9 months. Eva’s case manager got an estimate, which was £1,300 every 9 months to the age of 18 and £1,300 every 18 months after that. The Trust argues that this claim is not properly quantified, and is, in any event, too speculative.

I consider that it is likely that Eva will use AFOs in the future. Her orthopaedic specialist and her physiotherapist both recommend them, and I am confident that her parents will do all they can to encourage her to use them. As I read her report (although it is somewhat ambiguous on this point), Eileen Kinley does not recommend them beyond the age of 16, when it is likely that Eva will stop growing. In my judgment, £800 per year until the age of 16 would be a reasonable award under this head.

Future transport

This head reflects the increased costs of travel which the Claimant will have. She will need a vehicle which is accessible to a wheelchair, and it is claimed that she will have increased mileage. The claim is in two parts. First, up to the age of 21, Eva claims the cost of converted vehicle, a Volkswagen Caravelle. The main disputes concern the initial cost of the Caravelle, and the proper rate of depreciation. I heard evidence from the parties’ experts (Miss Harris for Eva and Mrs Sharland for the Trust) about this. The difference in cost of the vehicle is associated with various extras such as parking sensors, electronic side doors, and privacy glass, which, Mrs Sharland asserted, were not “disability-related”.

Where the experts differed, I preferred the evidence of Miss Harris. Mrs Sharland was, in my view, too dogmatic on some questions: for example, her initial view that side wheelchair access was a “personal preference” which did not stand up to scrutiny in the context of London, where parking is notoriously difficult, and it makes obvious practical, and safe, sense, to move a wheelchair in and out of a vehicle from the side, rather than from the back. Even so, her acknowledgement of this obvious point was grudging. It was clear from her cross examination that she had applied the wrong test, in any event, asking whether a feature was “absolutely essential” rather than whether it was reasonably necessary. In my judgment Miss Harris explained convincingly that having electronically operated doors would make an important difference in speeding up access to the vehicle in the rain, and I was satisfied that even now, the patchy provision of lavatories that are accessible to wheelchairs means that privacy glass is reasonably necessary. Mrs Sharland, as I understood her evidence in cross examination, conceded in the end that parking sensors were reasonably necessary as the size of the Caravelle coupled with their absence might well restrict the pool of applicants who would apply to be Eva’s carer. I also accept that the price of adapted vehicles fluctuates, as they are adapted abroad, and the price may vary with differences from time to time in exchange rates and transport costs. For these reasons, I allow the cost of the adapted vehicle as claimed.

There is a dispute about the correct rate of depreciation, and the re-sale value for which credit should be given. It is argued for Eva that the Trust’s figures do not accurately reflect the fact that adapted vehicles have a lower re-sale value than conventional vehicles, because although there is a market for them, it is a smaller market than that for unadapted vehicles. In the calculations, as I understand it, the Claimant has given credit for depreciation on the base costs, but not on the costs of the adaptations. This approach was adopted in A v Powys Health Board [2007] EWHC 2996 (QB) (paragraph 143). I am satisfied that that is the right approach in this case. I allow this part of the claim as pleaded in the up-dated schedule.

After the age of 21, the Claimant claims on a similar basis, with the difference that she gives credit for a vehicle costing £13,000 from that age. This is said to be a reasonable concession given her loss of earnings claim. The Trust argues that she would be likely to have had a more expensive vehicle throughout, costing £20,000 rather than £13,000. I consider that it is unlikely she would have had a car at all in between the ages of 21 and 30, but that, after that, given her earnings, she would have been likely to have a car costing more than £13,000 after that. Given that the multiplier is 13.63, I am satisfied that the claim as pleaded in the updated schedule under this head is reasonable.

A claim is also made for additional running costs. The claim in the updated schedule is based on extra mileage of 5,200 miles per year. This is too great, as the evidence of Eva’s parents in their witness statement is that they did 1,150 extra miles per year as a result of Eva’s disability and that this went down over time. There are two parts to this.

The first is running costs to the age of 21. The new mileage figure reduces the annual loss to the difference between the cost of 1,150 miles per year at 37.05 p and 1,150 miles per year at 30.04 p. Although Mr Hutton QC accepted a higher figure in his up-dated counter-schedule, I do not think that it would be right to hold him to this in the light of the evidence on this point. I therefore accept the calculation in his note dated 4 December 2014. That gives a figure under this head of £8,211.

Different considerations apply, in my judgment, after the age of 21. First, it is agreed that Eva should give credit for the running costs of a smaller car (23.30 p per mile). The dispute concerns the amount of disability-related mileage. The Trust contends that the figure should still be 1,150 miles of disability-related driving. I reject that submission. It seems to me that, as Mr Latimer-Sayer submits, as Eva gets older, there is likely to be an increase in the extra driving that is related to her disability. Had she not been injured, I am satisfied that, as a young adult in London with her family background, she would have done most, if not all, her travelling on foot, by bike, or by public transport, rather than by car. As an adult, she will not be able to use any of those methods of transport, but will no doubt have an increasing desire to get out and about. But I do not accept that it will be as much as 5,200 miles per year. I consider, doing the best I can, that the loss under this head is the difference in running costs between the Caravelle and the smaller car in respect of 3,500 miles of disability-related driving.

There is now no dispute about additional insurance and vehicle recovery. The remaining dispute is about the costs of a rental car pending the purchase of the Caravelle. The Claimant claims for 4 months and the Trust would allow for 3. Mr Latimer-Sayer explained in his submissions the reasons why rental for 4 months had been claimed: there had to be time for judgment to be handed down, and for the money to be paid, and the Caravelle had to be ordered and adapted. Although he indicated that the Claimant would be willing to split the difference, I consider that it would be prudent to allow for the full four months.

For the reasons I have given, I allow the claims on the disputed items to the extent that I have indicated in this judgment. I am very grateful to both counsel for drawing up, and agreeing, a schedule of the agreed and disputed items, which is annexed to this judgment.